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Commercial Division Blog

Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: August 5, 2019

Malpractice Claim Dismissed as Premature Because the Harm Arising from the Alleged Malpractice Has Not Yet Occurred

On July 19, 2019, Justice Sherwood of the New York County Commercial Division issued a decision in YT Madison, LLC v. Sukenik, Segal & Graff, P.C., 2019 NY Slip Op. 32112(U), dismissing a malpractice claim as premature because the alleged harm had not yet happened, explaining:

In an action to recover for legal malpractice, Plaintiff must plead and prove that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages. In this case it is undisputed that whether or not Plaintiff will sustain any damages as a result of the alleged malpractice is unknowable at this time. Although damages in a legal malpractice case may include litigation expenses incurred in an attempt to avoid, minimize or reduce the damage caused by the attorney’s wrongful conduct, such potential damage cannot save plaintiff’s claim here because the damages that allegedly were proximately caused by the alleged malpractice are unknown.

The motion must be granted because the malpractice claim is premature.

(Internal quotations and citations omitted).

We both bring and defend professional malpractice claims and other claims relating to the duties of professionals such as lawyers, accountants and architects to their clients. Contact Schlam Stone & Dolan partner Erik Groothuis at egroothuis@schlamstone.com if you have questions regarding such claims or appeals of such claims.

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